If you are in a cohabitation relationship and you have not made a Will, you run the risk of leaving your partner in a very difficult position in the event of your death. Fortunately, the solution is straightforward as making a Will can solve these problems.
Recent research indicates that the majority of cohabitants believe that they will have similar inheritance rights to those of married couples. This is not correct. There is also a common belief that common law marriage exists, but again this is not the case.
What is the position for unmarried couples?
The legal position is that unmarried couples have no right to automatically inherit assets from a deceased partner. On death, property and assets are distributed either according to the terms of a Will or in the absence of a Will, the laws of intestacy. The laws of intestacy will benefit a spouse or civil partner, children and other family members. They will not automatically benefit a co-habiting partner and you may have to go to court to benefit from the estate. A Law Commission report into cohabitation rejected a reform of the intestacy laws to include an automatic right for co-habitees to inherit leaving a claim through the courts as the only option. In the absence of a change in the law, therefore, the onus is on a cohabiting couple to make Wills that set out exactly how they would each wish their property and assets to be dealt with in the event of their death.
Children of Cohabiting Couples
The myth of common law marriage also impacts on children of the relationship and who shall have care of them in the event of their parent’s death. The legal position of a minor child of unmarried parents may in certain circumstances be different from the legal position of the child with married parents. Parents who are married when their child is born both acquire parental responsibility for their child. Parental Responsibility (‘PR’) enables the parents either together or separately, to make important decisions about the child such as educational needs or medical treatments. Where the parents of a child are unmarried at the time of the child’s birth only the mother will automatically have parental responsibility. The child’s father may have to enter into a formal Agreement with the child’s mother that is then registered with the court or he will need to obtain a formal PR Order. The child’s father will acquire PR if he marries the child’s mother or if he is registered on the birth certificate, where the child was born after the 1st December 2003. In all cases, but particularly where there is only one parent with PR, it is very important that consideration is given to who shall acquire PR and care for the child on your death. If this issue is not addressed by appointing a guardian in your Will then it may well be left for the court to make the decision. The appointment of a guardian will transfer PR to the person of your choice.
Property Ownership for Cohabiting Couples
Property ownership can cause additional concerns as to whether the property should be held as joint tenants or tenants in common. If you have contributed differing amounts of money to the purchase or to improvements you may want to hold the property as tenants in common to reflect a differing share. If you have not made a Will your share will not pass to your partner and they may end up owning the property with your relatives. Without a Will you will also be unable to guarantee that your children maybe from an earlier relationship actually retain their home or certainly your monetary interest in it.
A Will is the Answer
Making a Will resolves the uncertainty that a cohabiting partner could face in the event of your death. It is a simple step that you can take to ensure that, at a time when they are grieving for you, they will not have to endure the additional worry of not having access to money, potentially losing the roof over their head and
having to approach the court to secure care of your children. Making a Will is normally straightforward and is likely to cost less than you might think. An experienced lawyer will ask you for details of your circumstances, discuss your wishes and prepare a Will for checking with you. If you wish, we can also provide tax advice.
To find out more information visit www.legacy-wills.co.uk